Safe Deposit & Trust Co. of Baltimore v. Gittings

• Decision Date: 09 January 1906
• Citation: 62 A. 1030,102 Md. 456
• Parties: SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al. v. GITTINGS.
• Court: Maryland Court of Appeals

62 A. 1030

102 Md. 456

SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al. v. GITTINGS.

Court of Appeals of Maryland

January 9, 1906

Appeal from Circuit Court, Howard County, in Equity: I. Thomas Jones, Judge.

Suit for accounting by John S. Gittings, as executor of Annie M Winter, against the Safe Deposit & Trust Company of Baltimore and another, executors of Henry Winter. From an order refusing leave to file a bill of review, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BOYD, PAGE, PEARCE, SCHMUCKER, and BURKE, JJ.

Arthur W. Machen, Jr., and Arthur W. Machen, for appellant trust company.

Julian I. Alexander and Bernard Carter, for appellee.

PEARCE, J.

This appeal is taken from an order of the circuit court for Howard county as a court of equity passed July 25, 1905, in the case of John S. Gittings, executor of Annie M. Winter, against the Safe Deposit & Trust Company of Baltimore and Arthur W Machen, executors of Henry Winter, refusing the petition of the said executors of Henry Winter for leave to file a bill of review to review the decree of said court passed in said cause on the 1st day of July, 1905. This litigation originated in a bill filed in 1903 by John S. Gittings executor of his mother, Annie M. Winter, against Henry Winter, her surviving husband, alleging that Mrs. Winter in the year 1869 delivered to her said husband certain securities, set out in said bill, belonging to her and of the value of about $30,000, to be sold by him and the proceeds to be reinvested as her property, the income thereof to be enjoyed by him during his life, but the corpus to revert to her, if living at his death, or, in the event of her death before him, to go to her personal representatives. The prayer of the bill was that Mr. Winter should be required to return an inventory of the investments thus to be made, and to bring the same into court to be dealt with as should be decreed, and also for general relief. Mr. Winter answered, admitting that he had received all the securities mentioned in the bill except the eight shares of Northern Central Railroad stock, but he denied that he had ever agreed to hold or reinvest the proceeds in her name or for her benefit, and alleged that she had made him an absolute gift of all the securities delivered, and that he had accordingly sold the same for his own account and invested the proceeds in his own name and for his own benefit, together with other funds of his own, and that he could neither return an inventory of the investments of the proceeds of sale of said securities, or bring the same into court. After testimony was taken and hearing had, the plaintiff's bill was dismissed by the circuit court for Howard county. From that decree the plaintiff appealed to this court, which reversed said decree on April 9, 1905 (60 A. 634), and remanded the cause, "to the end that further proceedings should be had in conformity with the opinion of this court." That opinion sustained the plaintiff's claim, and declared "that, as the defendant did not invest the securities in his wife's name so that they could be easily identified, and has failed to say in his testimony in what they were actually invested, and at what price, it is but fair that he should be charged for the currency price in New York when the securities were sold; and this amount should be ascertained as $29,000." Pending these proceedings in this court, Mr. Winter died, and his executors were made parties to the case before the passage of the decree in this court. After the case was remanded to the circuit court for Howard county, that court proceeded to decree, "in conformity with the opinion and decree of the Court of Appeals, that the plaintiff recover against the Safe Deposit & Trust Company of Baltimore and Arthur W. Machen, executors of the last will of Henry Winter, deceased, to be paid out of the estate of said deceased, the sum of $29,000, the value, as ascertained by the said court, of the securities of the plaintiff's testatrix converted by the said Henry Winter deceased in his lifetime, and adjudged to have been the property of Annie M. Winter, the plaintiff's testatrix." This decree was passed July 1, 1905, and on the 6th of July the executors of Henry Winter filed in the circuit court for Howard county a petition for leave to file a bill of review, upon the ground of material evidence newly discovered since the passage of said decree. This petition alleged that Arthur W. Machen, one of the said Winter's executors, in April, 1905, being then in San Francisco, received letters testamentary from the proper authority in California to enable him to administer upon certain personal property of Mr. Winter in that state, and there learned that a firm of Parrott & Co., now out of business, had been, in 1869 and 1870, the bankers of Mr. Winter, and in charge of the investment of the proceeds of the securities delivered to him by Mrs. Winter; that Mr. Machen obtained access to the books of said firm which had been carefully preserved, and ascertained therefrom that the proceeds of sale of said securities amounted in gold to the sum of $21,027.50 and in currency to $26,310, which sum, together with the other large sums belonging to Mr. Winter, he invested in 355 shares of the stock of the San Francisco Gas Company (now reorganized as the San Francisco Gas & Electric Company) at a cost of $30,840 in gold, all of which shares constituted a part of his estate at his death, so that such number of said shares as represented the proceeds of sale of Mrs. Winter's securities could now be restored to her estate; and that these particulars were not known to Mr. Winter at the time of the filing of the bill of complaint of Mrs. Winter's executor, nor afterwards in the lifetime of Mr. Winter, nor discoverable by him by the use of any means in his power, in his then invalid and infirm condition of health. It also appeared from said petition that, while this stock was purchased at about $80 per share, its market value at the time of the discovery of these facts had declined to $57 or $58 per share. Mrs. Winter's executor answered this petition, denying that the facts alleged therein were material to the issues raised and decided in the case, and alleging that, even if material, they were obtainable before the passage of the decree of July 1, 1905 by the exercise of reasonable diligence on the part of Mr. Winter, and the petition was refused by the order of July 25th, now appealed from.

In the argument in this court it was contended by Mrs. Winter's executor that the circuit court for Howard county had no jurisdiction to grant leave to file a bill of review, to review a decree of that court passed in pursuance of a decree of this court reversing the former decree of the circuit court for Howard county, and such is the rule in the federal courts, as shown by the cases of Southard v. Russell, 16 How. 547, 14 L.Ed. 1052, and Kingsbury v. Buchner, 134 U.S. 671, 10 Sup.Ct. 638, 33 L.Ed. 1047. In the former case, it was said: "The better opinion is that a bill of review will not lie at all for errors of law alleged on the face of the decree after the judgment of the appellate court. These may be corrected by a direct application to that court, which would amend, as a matter of course, any error of the kind that might have occurred in entering the decree. Nor will a bill of review lie in the case of newly discovered evidence after the publication, or decree below, where a decision has taken place on appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly for that purpose. This appears to be the practice of the Court of Chancery and House of Lords in England; and we think it founded in principles essential to the proper administration of the law and to a reasonable termination of litigation between parties to chancery suits. 1 Vernon, 416; [[Stafford v. Bryan] 2 Paige, 45; [Haskell v. Raoul] 1 McCord, Eq. 22; [[McCall v. Graham] 1 Hen. & M. 13; Mitford's Pleading, 88; Cooper's Pl. 92; Story's Eq.Pl. 408; [Brewer v. Bowman] 3 J.J.Marsh. 492 ." That case was decided in 1853, and was approved in Kingsbury v. Buchner, supra, decided in 1890.

Notwithstanding however, the respect which is due and always rendered to the decisions of that tribunal, we cannot adopt that view after a careful examination of the authorities cited in Southard v. Russell. Some of these are cited in 2 Daniell's Ch.Pr. p. 1579, to sustain the opposite view. The author there says: "A bill of review, brought upon new matter, may, it seems, be permitted, even after the decree has been affirmed by the House of Lords"--and refers to Barbon v. Searle, 1 Vernon, 416; Cooper's Eq.Pl. 91,...